Williams v. Burlington Industries, Inc.

EAGLES, Judge. I — I At the outset we note that petitioner attempts to raise an assignment of error on appeal relating to the proper standard of judicial review of decisions by the Commission. Our examination of the record reveals that this purported assignment of error is raised for the first time in the appeal to this court. Having failed to raise this question at either the administrative level or in the superior court, petitioner cannot for the first time raise this question here. Accordingly, this assignment of error is not properly before us. Rule 10(b), Rules of Appellate Procedure. II Petitioner next assigns as error the remand by the Commission to the appeals referee for a second, subsequent hearing and decision. Petitioner argues that since Burlington failed to prove misconduct at the first hearing, this matter should have ended at that time with a decision in favor of petitioner. We agree. [276] Our review of the first decision of the appeals referee disqualifying petitioner for benefits on 27 July 1983, shows that the Deputy Commissioner, acting for the Commission, remanded the case for a new hearing and decision on the grounds that: It is unclear under which rule the claimant was discharged and exactly what the rule provided. Further, it appears that the three warnings and discharge all occurred on June 11, 1983. For a warning to serve any purpose as to future conduct, it would seem that it would have to be prospective. The Appeals Referee shall make a specific finding whether the claimant forgot to correct his time entries or falsified them. This action by the Commission was taken pursuant to G.S. 9645(e) which states in pertinent part: The Commission or Deputy Commissioner may on its own motion affirm, modify, or set aside any decision of an appeals referee on the basis of the evidence previously submitted in such case, or direct the taking of additional evidence, or may permit any of the parties to such decision to initiate further appeals before it, or may provide for group hearings in such cases as the Commission or Deputy Commissioner may deem proper. Petitioner alleges and we agree that the Commission abused its discretion under G.S. 9645(e) by remanding this case to the appeals referee for a second hearing, in effect giving the employer a second opportunity to prove its case. While we find no reported North Carolina case authority construing a remand pursuant to G.S. 9645(e), the appropriate standards for such a remand are readily ascertainable from cases dealing with judicial review of decisions of the Commission. If the findings of fact of the Commission, even though supported by competent evidence in the record, are insufficient to enable the Court to determine the rights of the parties upon the matters in controversy, the proceeding should be remanded to the end that the Commission make proper findings. In re Boulden, 47 N.C. App. 468, 471, 267 S.E. 2d 397, 399 (1980); Employment Security Commission v. Young Men’s Shop, 32 N.C. App. 23, 29, 231 S.E. 2d 157, 160, cert. denied, 292 N.C. 264, 233 [277] S.E. 2d 396 (1977). If there is no finding as to a material fact which is necessary for proper determination of a case, the case must be remanded to the Commission to make a proper finding. Employment Security Commission v. Young Men’s Shop, supra. The reciprocal of this principle would seem to be that if all sufficient and necessary findings of material fact essential to resolving the issue have been made, there is no need to remand the case and any remand would be an abuse of discretion. To hold otherwise would allow the Commission, in the exercise of its discretion, pursuant to G.S. 9645(e), to remand cases repeatedly for a “second bite at the apple” where the facts found by the appeals referee actually determine the controversy even though the facts found do not support the appeals referee’s conclusions of law purportedly based on those findings of fact. The record reveals that the appeals referee found as fact: 2. Claimant was discharged from this job for leaving work early and without permission and falsifying time records. 3. On June 7, 1983, June 8, 1983 and June 9, 1983, claimant was scheduled to work from 7:00 p.m. to 7:00 a.m. On each of those days claimant left prior to 7:00 a.m. and did so without permission. Claimant left early on those dates because he had completed his work and was tired. Claimant didn’t request permission because he would have to call his supervisor at his home and claimant did not want to disturb the supervis- or. (Emphasis added.) 4. On claimant’s time record, claimant entered that he had worked twelve hours on each day, June 7, June 8, and June 9, 1983. Claimant had not worked 12 hours. Claimant entered his time before the start of each work day and just didn’t think about correcting the entries on the subsequent days. (Emphasis added.) Based on these findings of fact, the appeals referee concluded that claimant’s leaving early without permission and falsifying time records “did evince a willful disregard of the employer’s best interest.” Accordingly, the appeals referee denied benefits by reason of misconduct connected with employment. We believe that the facts found by the appeals referee at the conclusion of the first hearing resolve the case, but not in favor of [278] respondents. For this reason, it was error for the Commission, under the facts of this case, to remand for a second, subsequent hearing before the appeals referee. This Court has defined the term “misconduct” as it applies to the termination of employment and denial of unemployment insurance benefits as: [CJonduct evincing such wilful or wanton disregard of an employer’s interest as is found in deliberate violation or disregard of standards of behavior which the employer has the right to expect ... or to show an intentional and substantial disregard of the employer’s interest or of the employee’s duties and obligations to his employer. In re Collingsworth, 17 N.C. App. 340, 343-44, 194 S.E. 2d 210, 212-13 (1973). While Burlington could certainly terminate petitioner’s employment for leaving work early without permission and for falsifying time records, we hold that the facts of this case do not indicate a willful and deliberate disregard of company policy or an unwillingness to work which would disqualify claimant from unemployment insurance benefits by reason of G.S. 96-14(2). See, Kahl v. Smith Plumbing Co., 68 N.C. App. 287, 314 S.E. 2d 574 (1984). The facts found by the appeals referee in the first instance show that while petitioner did, in fact, leave work early without permission and that he did enter hours into his time record that he did not actually work, he had what amounted to good faith cause for leaving work early, not notifying his supervisor and entering hours into his time record that he did not actually work. See, Intercraft Industries Corp. v. Morrison, 305 N.C. 373, 289 S.E. 2d 357 (1982). Accordingly, the findings of fact do not support the conclusions of law by the appeals referee in his order of 27 July 1983 denying benefits to petitioner. Those same facts, however, resolve the issues and it was error for the Commission to remand this case for a second subsequent hearing before the appeals referee. The judgment of the Superior Court of Sampson County in 84-CVS251 affirming “the decision of the Employment Security Commission ... in its entirety” is vacated and the case remanded for entry of an award of benefits. [279] Our determination of this issue makes it unnecessary for us to consider petitioner’s remaining assignments of error. Vacated and remanded. Judges BECTON and PHILLIPS concur.